Court Rules that Automatically Generated Read Receipt is Not Hearsay: eDiscovery Case Law

By : Doug Austin

In Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Plaintiff Awarded Sanctions and Reimbursement of Some eDiscovery Costs: eDiscovery Case Law

By : Doug Austin

In Engineered Abrasives, Inc. v. American Machine Products & Service, Inc., Illinois District Judge Sara L. Ellis awarded the plaintiff damages, attorneys’ fees and some requested costs, as well as granting the plaintiff’s motion for sanctions and ordering the defendants to reimburse the plaintiff $12,800 for the cost of conducting a forensic computer examination, which the plaintiff maintained was necessitated by Defendants' evasive and incomplete responses and their failure to produce documents during discovery.

Defendant Does Not Take the Fall for Spoliation in Slip and Fall Case: eDiscovery Case Law

By : Doug Austin

In Harrell v. Pathmark et al., Pennsylvania District Judge Gene E. K. Pratter, after a hearing to consider whether to draw an adverse inverse instruction due to the defendant’s possible spoliation of video evidence, determined that “a spoliation inference would not be appropriate here”. Finding that the plaintiff had presented no evidence that the defendant had constructive notice of a dangerous condition resulting in her slip and fall, Judge Pratter also granted the defendant’s motion for summary judgment.

Image is Not Only Everything, It Is Also Legally a Copy, Appeals Court Rules: eDiscovery Case Law

By : Doug Austin

In Colosi v. Jones Lang LaSalle Americas, Inc., the Sixth Circuit Court of Appeals affirmed the District Court’s judgment to approve a $6,369.55 bill of costs which included synchronization of deposition videos and imaging of hard drives that the defendant submitted after prevailing in the case.

Court Rules that Australian Company’s Duty to Preserve Only Begins when US Court Has Jurisdiction: eDiscovery Case Law

By : Doug Austin

In Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., Ohio District Judge Timothy S. Black ruled that the duty to preserve for the defendant (an Australian company with offices and facilities only in Australia) did not begin until the complaint was filed in US courts in December 2011, denying the assertion of the intervenor/counter defendant that the duty to preserve arose in 2002.

Court Agrees with Plaintiffs, Orders Provision for Qualitative Sampling of Disputed Search Terms: eDiscovery Case Law

By : Doug Austin

In the case In Re: Lithium Ion Batteries Antitrust Litigation, California Magistrate Judge Donna M. Ryu ordered the defendants to comply with the plaintiffs’ proposed qualitative sampling process for keyword search terms, citing DaSilva Moore that keywords “often are overinclusive”.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: eDiscovery Case Law

By : Doug Austin

In Burdette v. Panola County, Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

Court Upholds Review of Taxable Costs by Clerk, Awards over $57,000: eDiscovery Case Law

By : Doug Austin

In Comprehensive Addiction Treatment Center, Inc. v. Leslea, Colorado District Judge Christine M. Arguello denied the plaintiffs’ motion to review Clerk's Taxing of Costs Under F.R.C.P. 54(D)(1), upholding the award by the Clerk of the Court of $57,873.61 in taxable costs.

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: eDiscovery Case Law

By : Doug Austin

In Rio Tinto Plc v. Vale S.A., New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court's approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”

Court Rules on Dispute about Search Terms and Organization of Produced Documents: eDiscovery Case Law

By : Doug Austin

In Lutzeier v. Citigroup Inc., Missouri District Judge Ronnie I. White ruled on two motions to compel discovery by the plaintiff, addressing (among other things) disagreement on search terms to be used by the defendant and lack of organization and labeling of the defendant’s production to date.

You Don’t Get a Second Chance to Make a First Document Production Request: eDiscovery Case Law

By : Doug Austin

In Allison v. Clos-ette Too, LLC, New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.

Appeals Court Reverses Award for Attorney Fees for Overbroad ESI Requests: eDiscovery Case Law

By : Doug Austin

In Bertoli et al. v. City of Sebastopol, et al., the California Court of Appeals, while not disagreeing with the trial court’s finding that the plaintiff’s ESI request was “unfocused and nonspecific, unduly burdensome, and an alarming invasion of privacy rights”, disagreed that their Public Records Act (PRA) requests were “clearly frivolous” and reversed the trial court’s order for attorneys fees and costs.

Judge Shows Her Disgust via “Order on One Millionth Discovery Dispute”: eDiscovery Case Law

By : Doug Austin

In Herron v. Fannie Mae, et al., DC District Judge Rosemary M. Collyer issued an order titled “Order on One Millionth Discovery Dispute” where she decided that “[c]ontrary to its usual practice, the Court will rule immediately, in writing” on the latest discovery disputes between the plaintiff and defendant.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: eDiscovery Case Law

By : Doug Austin

In In Newill v. Campbell Transp. Co., Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

Court Awards Attorney Fees to Defendant After Delayed Production by Plaintiff: eDiscovery Case Law

By : Doug Austin

In Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp., Michigan Magistrate Judge Phillip J. Green awarded some (but not all) of the attorney fees requested by the defendant after the plaintiff “made repeated promises to produce the subject documents”, but “failed to do so for nearly three months after the deadline for responding to Westport's Rule 34 request” and “compliance was obtained only after Westport filed its motion to compel”.

Plaintiffs Not Sanctioned for Late Production, Citing Their $29,000 Expense to Hire Experts to Assist: eDiscovery Case Law

By : Doug Austin

In Federico et al. v. Lincoln Military Housing LLC, et al., Virginia Magistrate Judge Douglas E. Miller, concluding that the defendants had not established that the plaintiffs had acted in bad faith when failing to meet production deadlines, declined to impose “any further sanction against Plaintiffs beyond the $29,000 expense associated with their expert's production of the Facebook records”, except for a portion of the reasonable attorney's fees associated with the original motion to compel.

Plaintiff Sanctioned for Late Production, But Not for Failure to Produce Data Held by Outside Vendor: eDiscovery Case Law

By : Doug Austin

In Ablan v. Bank of America, Illinois Magistrate Judge Daniel G. Martin recommended that the defendant’s Motion for Sanctions should be granted in part and denied in part, recommending that the plaintiffs be barred from using any new information at summary judgment or at trial that was contained on eight CD-ROMs produced late, but recommending no sanctions for failing to produce or make available documents held by the plaintiff’s outside vendor.

Payday Loan Company Sanctioned for Discovery Violations: eDiscovery Case Law

By : Doug Austin

In James v. National Financial LLC, Delaware Vice Chancellor Laster granted the plaintiff’s motion for sanctions after determining that the defendant’s “discovery misconduct calls for serious measures”. However, the plaintiff’s request for a default judgment was not granted, but lesser sanctions that included attorneys’ fees and a ruling that the lack of information contained in the requested document resulted in an admission.

Court Orders Defendant to Submit Further Declaration after Plaintiff Disputes its Claimed eDiscovery Costs – eDiscovery Case Law

By : Doug Austin

In Bonillas v. United Air Lines Inc., California Chief Magistrate Judge Elizabeth D. LaPorte ordered the defendant to submit a further declaration supporting its claimed eDiscovery costs by addressing several issues raised by no later than January 5, 2015, with the plaintiff having until January 8, 2015 to submit a brief response to the further declaration if he chose to do so.

Three “C”s, Cowboys, Cannibals and Craig (Ball) – eDiscovery Best Practices

By : Doug Austin

They say that a joke is only old if you haven’t heard it before. In that vein, an article about eDiscovery is only old if you haven’t read it before. Craig Ball is currently revisiting some topics that he covered ten years ago with an updated look, making them appropriate for 1) people who weren’t working in eDiscovery ten years ago (which is probably a lot of you), 2) people who haven’t read the articles previously and 3) people who have read the articles previously, but haven’t seen his updated takes. In other words, everybody.



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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at